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Legal Writing: How to Begin a Brief or Memorandum

At the trial court level, most lawyers begin their briefs with an "Introduction" section. There's nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn't.

Think of your your introduction more as an executive summary. Don't just introduce what's to come; instead, summarize everything that follows. You don't have to limit yourself to a single paragraph; use as much space as you need to summarize all your best points. Make the introduction self-contained--that is, summarize all the best parts of what's to come later in the brief--so that a judge doesn't have to read any further. You can cite cases or quote from them. If possible, be entertaining. At the very least, adopt a confident, decisive tone. Make it clear there's no way you can lose.

This is all easier said that done. After the continuation, I've posted a few examples from some of my own briefs. I don't mean to suggest they are models of style, but you'll get an idea of what I've described as a proper introduction. And since many lawyers follow this model in their own practice, you can begin to collect examples from briefs you run across in in the wild that you think have strong introductions.

For other writing tips, the Legal Writing Category of this weblog or some of the articles I've done from the Illinois Bar Journal:

In asking this Court to dismiss Counts IV and V of Plaintiffs’ Second Amended Complaint for lack of personal jurisdiction, BJC fails to submit any sworn evidence, by affidavit or otherwise, that would demonstrate why BJC cannot be sued in Illinois.
The issue is whether BJC conducts business in Illinois. But BJC fails to submit any evidence, positive or negative, about its ties to Illinois. Instead, it merely states (in many different ways) that it has a significant presence in Missouri. BJC’s presence in Missouri is largely irrelevant. Much more relevant is its activity in Illinois. On this issue, BJC is strangely silent.

The silence is understandable. In truth, BJC does have a significant business presence in Illinois. An affidavit attached as Exhibit A to this memorandum authenticates six photographs showing BJC’s permanent and continuous business activities in Illinois. The significance of these photographs is discussed later in this memorandum.

Since BJC cannot truthfully claim that it does not do business in Illinois, it takes another approach: BJC implies that jurisdiction is lacking because Plaintiff failed to affirmatively plead jurisdictional facts in her complaint. This is another red herring. Under both federal law and Illinois law, there is no such requirement that a plaintiff plead jurisdictional facts. Plaintiff did not need to meet any “burden” in her initial complaint, as BJC implies. Once BJC raises the issue of jurisdiction, however, it is BJC’s burden to present evidence in conjunction with its motion to dismiss that it has no contacts with Illinois. This it has failed to do.

Since BJC maintains a permanent and continuous business presence in Illinois, this Court has personal jurisdiction over BJC. Its motion to dismiss should be denied.

Example Introduction #2:

This case concerns a simple, but deceptive, telephone transaction that Ameritech has used to derive millions of dollars in ill-gotten profits. The case is perfectly suited to class action treatment. The simple transaction upon which Plaintiff’s allegations are based was identical for all class members. There is a single legal claim for violation of the Illinois consumer fraud act. The class is made up solely of Illinois residents. Since Plaintiff seeks certification of an Illinois-only class, none of the complications of a multi-state class action is present here.

Despite the simplicity of the case, Ameritech’s brief in opposition raises various objections to class certification – all without merit. Ameritech’s brief also contains notable concessions. Ameritech concedes the class is so numerous that joinder would be impracticable. Ameritech cannot dispute that issues common to all class members – both factual and legal issues – abound, and that the central transaction at issue in the case was identical for all class members. See, e.g., Ameritech Memo, 3 (recitation of facts).

Ameritech’s complaints about the class representative, A--- Melvin, are likewise meritless. That Mr. Melvin moved from Madison County to Florida since the case began is of no consequence, since he is highly motivated as class representative and remains ready and able to represent the class—as he has during the entire case. That Mr. Melvin or members of his family used the deceptive service five times over three months after the lawsuit was filed is also of no consequence. Even if this impacts his damages, it does
not extinguish his claim or disqualify him from being a class representative.

To allow Ameritech to profit from its fraudulent scheme would be an unfortunate result in a meritorious case. As discussed further below, this case should be certified as a class action.

Example Introduction #3:

Defendant Earthshine’s motion to dismiss for forum non conveniens should be denied. This case was properly brought in Madison County and the doctrine of forum non conveniens has no application. To make its argument, Earthshine must ignore key facts about the accident, the parties, and the Plaintiffs’ causes of action; that Defendant even raises the defense is surprising.

This case arises from an allegedly defective gel candle that Plaintiff K---- J---- purchased at Kirlin’s Hallmark in Madison County. To give an example of Earthshine’s faulty analysis, in its brief, Earthshine fails to mention that Plaintiffs are suing a second defendant, Kirlin’s Hallmark, for negligence arising out of the way it displays and sells gel candles to residents of Madison County. Kirlin’s alleged negligence, in other words, occurred in Madison County. For purposes of forum non conveniens analysis, the result is the same as if Plaintiff was a resident of Madison County. In addition, Plaintiff recently moved to Madison County, where her family has lived and worked for many years. So not only does this case revolve around Madison County, but Plaintiff is also a resident of Madison County.

Other large gaps in Earthshine’s argument are discussed below. Quite simply, the doctrine of forum non conveniens doesn’t apply in this case. In addition, dismissal of this action for refiling in Missouri, far from making the case more convenient to litigate, would make it less convenient and more costly. Dismissing the case would also give no deference to Plaintiffs’ choice of forum and would ignore the important interests residents of Madison County have in the outcome of this case. For all of these reasons, Defendant’s motion should be denied.

Example Introduction #4:

Plaintiff is taking the extraordinary step of asking this Court to reconsider its ruling on Plaintiff’s motion to remand only because a great deal is at stake. In its ruling, the Court held that Plaintiff’s action is preempted by ERISA and, therefore, should not be remanded to state court. As explained below, Plaintiff is unlikely to be able to state an ERISA claim against the Defendant hospitals. Thus as a result of the Court’s ruling, the Defendant hospitals have been granted a green light to continue their allegedly unfair and unconscionable billing practices, which have been condemned or criticized by state courts throughout the country. See Section A3, below. But not only the Defendant hospitals have received this green light—so have other hospitals within this Court’s jurisdiction which, as explained below, are already trying to take advantage of the Court's ruling.

Though the Court ruled Plaintiff’s state-court claims were preempted by ERISA, it is unlikely that Plaintiff will be able to state a claim against the Defendant hospitals under ERISA. The reason for this is simple. Plaintiff’s ERISA plan, if any, would not give her any rights against the Defendant hospitals because the Defendant hospitals would not be parties to any such ERISA plans. See, e.g., Benton v. Vanderbilt University, 118 F. Supp. 2d 877 (M.D. Tenn. 2000). Even if Plaintiff was party to an ERISA plan, she would not be able to enforce her rights under the plan against the Defendant hospitals. This is also one of the reasons why Plaintiff’s state-law claims should not be considered preempted by ERISA. Plaintiff is suing two health-care providers, not two ERISA insurers. If Plaintiff prevailed and received damages, the damages would come from the Defendant hospitals, not in the form of benefits from any ERISA insurance policy.

There are other reasons why Plaintiff’s state-law claims should not be considered preempted. Defendants’ arguments to the contrary, the legality of the scheme alleged in Plaintiff’s Complaint does not turn on the interpretation of ERISA contracts. The scheme, simply put, is this: in cases involving accidents, the Defendant hospitals have decided that they have a choice of either submitting a patient’s bills to the patient’s health insurer or ignoring the health insurance entirely in order to place a lien for a larger amount on a patient’s third-party settlement. Admitting to this practice in an affidavit, an agent of Defendant BJH agent explained the scheme like this:

B---- Hospital, through its agent, my employer, elected to perfect a hospital lien against the proceeds of R---’s personal injury claim, instead of accepting a potentially lesser amount from R---’s health insurance carrier.

Second Amended Complaint ¶ 8.

However, this is only a part of the practice about which Plaintiff complains. A second part of the practice—elevating it to a “scheme” in violation of the Illinois Consumer Fraud Act—involves the Defendant hospitals’ decision to fail to tell their patients about their policy to perfect liens rather than turning the patients’ bills into their insurance companies. Complaint ¶¶41, 52. Plaintiff alleges that had she known about the hospitals’ practice, she would have gone to another hospital.

As a result of the Court’s ruling that Plaintiff’s state-law claims are preempted by ERISA, the Defendant hospitals will now be able to continue their unlawful scheme. In this memorandum, Plaintiff respectfully asks this Court to reconsider its ruling, which has ramifications far beyond that of this single case.

That's the end of the examples. How did these motions come out? The first was a win; the second was a win; the third was never ruled upon due to a settlement; and the fourth was a loss.

Comments

Evan, you've hit the nail on the head. When I see a brief with an introduction that simply summarizes the procedural posture of the case, or, worse yet, merely states that the brief is submitted in support of the party's motion for [insert relief here], I shake my head when I think of the opportunity the writer wasted (of course, if it's my opponent, I smile as well).

I find that it's easiest to write a strong and effective introduction if I draft that section of the brief last, after I have had as much time as possible to digest the facts and law.